0120103319
08-23-2012
Ruth Winston, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Ruth Winston,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120103319
Hearing No. 430-2009-00129X
Agency No. HUD-00061-2008
DECISION
Complainant filed an appeal from the Agency's final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented on appeal are: (i) whether the EEOC Administrative Judge (AJ) properly issued a summary judgment decision; and (ii) whether the AJ correctly found that the Complainant did not establish that the she was subjected to hostile work environment harassment based on sex, race, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Equal Opportunity Specialist, GS-14, at the Agency's Fair Housing and Equal Opportunity Field Office in Richmond, Virginia. On February 6, 2008 Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as follows:
1. On January 18, 2008, her first-level supervisor (S1) presented her with a memorandum entitled, "Direction Regarding Disclosures to Staff."
2. On January 18, 2008, S1 presented her with a memorandum entitled "Reasonable Accommodation."
a. An "Authorization Disclose Confidential Medical Information" was attached to the memorandum.
b. Also attached to the memorandum was a position description that was not the same as the one she received for her position. Information in the position description was added, changed, and omitted.
3. In January 2008, a Headquarters intern contacted her and requested detail to the Richmond Fair Housing and Equal Opportunity Field Office. S1 telephoned the intern and the intern's supervisor recommending that the intern be assigned to the DC field office instead of the Richmond office.
4. S1 violated the Agency's "out-stationed" protocols and further created a hostile work environment by:
a. Questioning her guidance, direction, and supervision, stating her (S1's) different styles.
b. Yelling and nearly arguing with her unprofessionally, and continuing to engage in direct and almost daily communications with staff assigned under her direction.
c. Agreeing upon and editing documents then stating that she (S1) wanted to renege on such documents regarding personnel actions.
d. Responding to staff allegations, in conjunction with the Regional Director, regarding her authority.
e. Engaging in her staff work products without her knowledge or consent.
f. Undermining her role with the Richmond staff.
g. Sending an e-mail to a member of her staff on December 18, 2007, beginning with, "Ruth, I would like to suggest." The e-mail was received by the union and forwarded to headquarters.
h. Being accused of not being political and savvy because she did not "look at" an employee when she became ill in the workplace and was removed via ambulance.
i. Not requiring written documentation from an employee, as she (S1) required of her, concerning her inability to travel due to illness.
j. Agreeing in November 2007 to change the first and third elements on her performance appraisal to "Outstanding" and then reneging on the agreement.
k. Telling her to "prove herself" by doing some of the work assigned to employees at the GS-12 and GS-13 levels.
l. Sending her a memorandum by mail that was opened and reviewed by the entire staff causing employees to chuckle and ridicule her.
5. On April 10, 2008, S1 sent an e-mail to her specifically requesting that she report information to her regarding Affirmative Fair Housing Marketing Plans (AFHMP) by April 25, 2008. In addition to sending a copy of the e-mail to a subordinate member of her staff who has no marginal responsibility, S1 also copied individuals outside of her unit.
6. On April 11, 2008, S1 sent an e-mail to her inquiring into the identity of the individual who sent her a Federal Express package when she had no knowledge of the incident.
7. S1 telephonically conducted her mid-year progress review, which included three additional elements that had not been previously discussed with her. She was rated "Excellent" on three elements and "Fully Successfully" on three elements. Overall she was rated "Excellent," which was lower than her previous rating.
On July 24, 2009, Complainant amended her complaint further contending that the Agency subjected her to hostile work environment harassment when:
8. On June 3, 2009, she received a notice of a proposed three-day suspension from S1.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 9, 2009, motion for a decision without a hearing and issued a decision without a hearing on February 23, 2010, entering judgment in favor of the Agency. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The AJ found that Complainant failed to establish discriminatory animus with respect to the January 18, 2008, memorandum entitled, "Direction Regarding Disclosures to Staff." The AJ noted that two of Complainant's subordinates notified S1 that Complainant had told them the contents of S1's private conversation with Complainant. The AJ further found that Complainant failed to establish discriminatory animus with regard to her mid-year progress review. The AJ noted that Complainant made no showing that any of her colleagues received a higher rating. The AJ noted that the mere fact that Complainant was rated as "excellent" does not raise an inference of discrimination even though the rating was lower than the previous year. The AJ also found that Complainant failed to establish discriminatory animus with respect to the notice of proposed suspension that S1 issued to Complainant. The AJ noted that Complainant shared S1's assertion that the office was dysfunctional with her subordinate employees even after Complainant was instructed not to do so. The AJ noted that Complainant failed to take an instructional course as noted in the notice of proposed suspension. The AJ also noted that Complainant failed to establish discriminatory animus with respect to her other allegations. The AJ noted that although Complainant faced a difficult work environment, she failed to provide sufficient evidence to establish that S1's actions were motivated by discriminatory animus. The AJ additionally noted that Complainant failed to establish that she faced working conditions that resulted in a change in the terms and conditions of her employment. The AJ therefore found that Complainant failed to establish a prima facie case of hostile work environment harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant only contends that the AJ did not issue a fair decision without a hearing.1 Complainant did not file a substantive brief on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Summary Judgment
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that summary judgment was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on her statutorily protected classes, S1 continuously subjected her to a hostile work environment. Construing the evidence in Complainant's favor, we find that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where S1 took actions that seemed adverse or disruptive to her; however, we find that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work environment. In addition, we find that Complainant failed to establish that these incidents were motivated by discriminatory animus towards her race, sex, or in reprisal for her prior protected EEO activity. While the record strongly suggests that Complainant and S1 had a contentious work relationship, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Accordingly, we find that Complainant has failed to establish that she was discriminated against as she alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2012
Date
1 Complainant sent her notice of appeal to the Agency on April 5, 2010. The Agency forwarded Complainant's notice of appeal to the Commission on August 4, 2010.
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0120103319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103319